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Biodiversity and Climate Change Laws: A Failure to Communicate?

Climate change driven by global warming is substantially modifying important ecosystems and threatens to destroy great swaths of biodiversity. At both the international and state levels, two separate sets of laws exist – one addresses biodiversity and endangered species (e.g., the United Nations Convention on Biodiversity, and the U.S. Endangered Species Act and comparable laws in other countries) and the other addresses greenhouse gas emissions. Each body of law poses the same (but mirrored) analytic question. That is, to what extent do the domestic and international laws of biodiversity consider climate change in their regulatory frameworks? And, conversely, to what extent do the emerging international and domestic climate change legal regimes account for biodiversity in their regulatory schemes? Are the regimes compatible, or do they operate at cross-purposes? Is the extent of incorporation adequate and effective? If not, how could the laws be improved to incorporate biodiversity concerns into climate change decisions, and to fold climate change concerns into the operation of biodiversity laws.

For instance, will greenhouse gas offset projects and emission trading regimes promote monoculture reforestation at the expense of biodiversity, or will biodiversity protection and enhancement be encouraged in evaluating projects? Conversely, the effects of warming are already being felt by a variety of ecosystems from coral reefs to Arctic sea ice; does this trigger legal obligations under biodiversity laws, and if so, what kind of remedies might be available under those laws? This paper argues the climate change legal regime and biodiversity legal regime operate on separate paths that fail to link biodiversity and climate change policy into decision making. As a result, there is a significant risk that climate change policy will be inconsistent with biodiversity goals and that biodiversity policy could interfere with climate change policy goals.